Monday, January 23, 2012

Ireland's SOPA: A FAQ

What's this all about?

Long story short: the Irish government plans, before the end of January, to bring in a law which would allow Irish courts to block access to websites accused of infringing copyright (and possibly do other things as well).

The law is the responsibility of the Department for Jobs, Enterprise and Innovation where the key person is junior minister Sean Sherlock.

What will the law say?

We don't have a final text yet. But the key part is likely to be similar to a previous draft which said:

3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:

(5A)(a) without prejudice to subsections (3) and (4), the owner of the
copyright in the work concerned may apply to the High Court for an
injunction against a person who provides facilities referred to in
subsection (3) where those facilities are being used by one or more
third parties to infringe the copyright in that work.

(b) In considering an application for an injunction under this
subsection, the court shall have due regard to the rights of any third
party likely to be affected and the court shall make such directions
(including, where appropriate, a direction requiring a third party to be
put on notice of the application) as the court may deem necessary or
appropriate in all the circumstances.

Can we have that in English please?

Certainly. This will give the Irish courts an open-ended power to grant orders against ISPs and other intermediaries who provide facilities which might be used to infringe copyright. This could include hosting providers, social networks, forums, video hosting sites - potentially most online services.

What will these intermediaries be required to do?

We don't know. At a minimum this will probably allow courts to require ISPs to block access to alleged infringing sites (such as The Pirate Bay). Over and above that it becomes impossible to say - the language is so vague it might, for example, allow a court to require an ISP to introduce a three strikes system or to block certain ports. However, once copyright plaintiffs get hold of this power you can expect it to be pushed to its absolute limit.

So who will pay for this?

We don't know. It is possible, under this draft, that the intermediaries will have to pay for both the legal costs of the court application and also the running costs of whatever they are ordered to do - for example, the staff costs of receiving and administering block lists. In that case, expect costs to be passed on to the end user.

Will the sites to be blocked have a right to be heard?

Maybe. The draft language does say that affected third parties might be given notice of applications to block them. On the other hand, in 2009 an Irish High Court judge was happy to allow Eircom to block The Pirate Bay without any notification or chance to be heard which doesn't bode well for the future.

What sort of standard will be used to decide if a site should be blocked?

Your guess is as good as mine - the draft is completely silent on this point.

Yes - including the latest push to establish Ireland as a centre for cloud computing. Here's what tech journalist Adrian Weckler had to say:

With their billions of users, YouTube, Facebook and Twitter
inherently find some copyright protected material leaked onto their web services. The new law will give music and movie firms the legal footing to get ISPs blocking. That may not go down too well with Google and Facebook, which are two of Dublin's biggest employers. It probably won't sit easily, either, with the IDA, which may have to alter its pitch to large US social media firms who may have been thinking of setting up in Ireland. (That includes Twitter.)

So where's the Regulatory Impact Assessment? Surely we need more detail about the impact this law will have?

If nothing else will it at least stop illegal downloads and protect Bono's pocketbook?

No. Blocking is easily circumvented. But don't take my word for it - here's what UK regulator Ofcom had to say:

For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users.

So why is the government pushing this law now?

In a 2010 decision the High Court held that European law required Ireland to introduce blocking into domestic law, and that Ireland was in breach by failing to provide for court ordered blocking.

Doesn't that decision mean that blocking must be introduced?

Maybe. The law in this area is extremely complex, particularly since the European Court of Justice has given an important decision restricting the use of blocking in the meantime. That decision found that filtering would be impermissible if it undermined freedom of expression and blocked lawful communications - something that is inevitable if this proposal is adopted.

From a practical point of view, the European Commission - which monitors implementation of EU law - doesn't seem to think Ireland is in breach and hasn't taken any action against Ireland for failure to introduce blocking. Irish telecoms group ALTO have also put forward a different view arguing that this law is unnecessary.

However, even if we assume that EU law does require some form of blocking then it should not be introduced in a way which

short circuits the democratic process and without proper scrutiny by the Irish parliament; and

20 comments:

Hi, great post.....just wondering, do you have standardised letter/tweet that I could send around to the TD's and my friends? I cannot see the name of the law to write a tweet about it.....and people are more likely to resend a well informed letter than me going read this and write to your TD. It would be great to put the pressure on :)

Hi Tj,I've studied European, Constitutional and Commercial law including copyright there is plenty of protection available its only legislation and can always challenged, if it is applied in a manner other than which it was enacted, through an appeal. Or deemed unconstitutional by way of judicial review if caselaw shows it to be offending freedom of expression. And you say in your blog.."...since the European Court of Justice has given an important decision restricting the use of blocking in the meantime. "That decision is 'directly effective' here meaning it must be applied by the judiciary and may be argued here. And his synopsis of that DRAFT piece of legislation is wrong its perfectly in line with previous copyright law that strangely didn't require referendum! Any vagueness can be read in light of the cogent caselaw etc. Are you suggesting that the internet company be immune to copyright law that hardly seems fair on say Mr. I like to bootleg tapes?

To steal something from someone, means you take what isn't yours & they no longer have it.

When someone says the same thing you just said, that isn't breaking copyright law, nor is it committing a crime. They did not take anything from you, nor did they steal anything.

They may have repeated it, but if stupid laws like you are suggesting are allowed to flourish, then education will become illegal & learning also. It sounds like this is what you want.

But only a fool would want that. Are you scared?

It is people like you who lash out against education/learning/trading thoughts (This IS how we learn, after all) that make me want to puke in disgust as you attempt to trample the basic rights of every human alive to voice their thoughts because of Plagiarism/Copyright "Theft"/"Intellectual" property/etc.

I want to tell you, there is no way a thought can be stolen. It can't be done. Are you gonna handcuff thoughts? Are you daft enough to suggest that merely looking at "copyrighted" works of art is illegal since the brain auto images an exact copy & is considered "piracy" since they created an exact copy?

People like you need to learn how to work on a normal job & stop posting here as a government shill.

I get tired of lazy people who want to create one digital copy & never work the rest of their lives because they think it is a God given right to not do anything.

I got news for you. Everyone else has to work, & I don't see a problem with you working too!

Education is about sharing thoughts yes, but on the other hand if I write an essay full of other peoples ideas and do not cite them (i.e. give them credit for having the idea first) then I will fail that essay. If someone does write a song/makes a movie/writes a book/poem/story etc why should they have to give it away for free? You say people need to get a normal job, well what if I decided to get a job with you but instead of doing anything I just copied all your work at the end of the day and still got paid and you got no credit for it? Would you be happy then?

There's no need for a "debate" in the Dáil, for the simple reason that every vote is whipped, and therefore what is decided at Cabinet, where the discussion is in secret, is pretty much automatically ratified. Debates in the Dáil are pretty much for show.

That's just the rancid political culture in Dáil Éireann - all parties are guilty of it when they get into power. In the last 30 years, you could count the number of bills that were proposed by the Opposition that actually made in into law on the fingers of one hand. Even amendments to bills are routinely defeated by the Government, only to be re-proposed as government amendments, because it would "look bad" if the Government was seen to be defeated.

Dear tj, I have one question. I just started a blog now a website that I use for publishing news and analysis. Do I need to go to any office/organisation to register myself as a media? Or can I keep on publishing as I am doing now...?Thanks